Sentencing in sexual offences: what are the aggravating and mitigating factors?

On 2 March 2017, American Joshua Robinson was convicted and sentenced to four years’ imprisonment for engaging in consensual sex with two underaged girls and recording these acts on his mobile phone. Robinson’s jail sentence has caused widespread controversy, with an online public petition for harsher sentencing that has garnered over 20,000 signatures as of 7 March 2017.

Certain thoughts and questions may have crossed a reader’s mind when reading such news: Why did he receive such a sentence? Why are sentences more severe in some cases and not in others?

These are typical questions that readers might have when they come across news related to sexual offences, and there are several reasons why sentences differ from case to case. These reasons range from the sentences available for the offence the accused was charged with, to certain factors in each case which may either aggravate or mitigate the sentence.

Available sentences

In Robinson’s case, a mere imprisonment term has “outraged” the public and others have questioned why caning was not meted out as part of his sentence. Though news reports of sexual offences typically do not detail the specific charges dealt to accused persons, a useful point to note is that sentences meted operate within the available sentences that correspond to the sexual offence in question.

Available sentences can differ between offences, with the offence and the corresponding available sentences usually stated in the same section in the Penal Code. For instance, the offence of rape under section 375(1) carries with it imprisonment, and a fine or caning while a charge under section 376B for commercial sex with a minor involves imprisonment, or fine, or both, but no caning.

The Attorney General’s Chambers (AGC) has since clarified that the most serious charge it could have brought was the offence of sexual penetration of a minor under 16 years of age, under section 376A of the Penal Code.

For consensual sex involving minors, if an accused has been charged under section 376A(1) of the Penal Code, such a charge does not carry a punishment of caning if the victim is at least 14 years of age. The corresponding available sentences are then a jail term which may extend up to 10 years, or fine, or both.

Sentencing framework for rape

One of the reasons stated by AGC in their decision not to appeal Robinson’s sentence, was that the sentence imposed was broadly in line with relevant precedent cases.

When sentencing, reference is made to relevant precedent cases involving similar offences as well as cases with similar circumstances, factors and nature of the offence. Offenders with the same or similar level of culpability is given the same punishment to ensure there is consistency and fairness in sentencing.

Relevant precedents may also outline frameworks for sentencing practices in relation to certain offences.

For sexual offences pertaining to rape, the Singapore High Court set out four broad categories in the case of Public Prosecutor v AOM:

Category 1

Category 1 lies on the lowest end of the spectrum, where there exists no aggravating or mitigating factors.

The offender is in a position of responsibility towards the victim. For example, in the relationship of teacher and pupil (a relationship of trust and confidence)

Rape of a child, or a victim who is especially vulnerable (due to physical frailty, mental impairment or disorder or learning disability)

Category 3

Category 3 relates to the repeated rape of the same victim or of multiple victims.

Category 4

Lastly, Category 4 rape involves a rape offender who had displayed perverse, psychopathic tendencies or gross personality disorder, and would likely remain a danger to women should he remain at large.

The sentencing benchmarks for the categories of rape increase in severity, in line with the increasing seriousness of the nature of the rape committed.

Nonetheless, there may be situations which warrant a departure from the benchmark sentences in prior cases. For example, in the sentencing framework for rape, where the abovementioned situation exists, these three broad principles are used to assess the suitable sentence to be imposed:

Degree of harm to the victim

Level of culpability of the offender

Level of risk posed by the offender to society

Aggravating and mitigating factors

In the rape sentencing framework, reference was made to aggravating and mitigating factors.

What does this mean? Generally, these are factors which are considered when determining a sentence, potentially either: exacerbating the sentence (aggravating) or lessening it (mitigating).

The following are examples of some aggravating and mitigating factors that have been highlighted in past cases related to sexual offences:

Aggravating factors

Mitigating factors

Offender being in a position of trust

Guilty plea and remorse

Serial/repeated nature of offence

Low likelihood of reoffending

Harm caused to the victim

Offender’s young age

Transmission of sexual disease

Lack of antecedents and good conduct before offence

Premeditation of the offence

No injuries, violence, threats or coercion

It should be noted that the facts of each case are unique, and there is no definitive conclusion of whether a factor will indeed prove to be aggravate or mitigate a sentence in a particular case.